The Legislature and The Sob Sister Circus

Yes­ter­day (May 19) was an expe­ri­ence. It was nev­er on my buck­et list to tes­ti­fy to a state leg­is­la­ture on leg­is­la­tion but I did it. And I learned a lot.

HB 1 was the replace­ment bill for S.1067 – the bill that inte­grates the Hague Con­ven­tion on Inter­na­tion­al Recov­ery of Child Sup­port etc. into state law. The leg­is­la­ture met in spe­cial ses­sion to pass it and they did even though it is clear­ly and unequiv­o­cal­ly uncon­sti­tu­tion­al. And you don’t need to be a lawyer to fig­ure that out. You don’t even need to read beyond a sixth grade lev­el.

Arti­cle 1, Sec­tion 10 –

No state shall enter into any treaty, alliance, or con­fed­er­a­tion;

The vote to approve HB 1 (S.1067) did exact­ly that. The state became a par­ty to the Hague Con­ven­tion by ref­er­ence to it in the HB 1 leg­is­la­tion.

(Side Note: the fact that the bill num­ber is HB 1 is an irony too rich not to share. H1-B is the num­ber of the visa used by for­eign­ers who come into the coun­try on visas for pro­fes­sion­al IT work­er. The sub­ject mat­ter of HB 1 is a com­put­er sys­tem that will oper­ate inter­na­tion­al­ly to han­dle cross-bor­der child sup­port cas­es.)

The first event at the capi­tol was the pro for­ma bill print­ing which was done – as I under­stand it, not fol­low­ing prop­er pro­to­col. I didn’t attend that event because there was noth­ing to see. Instead, I attend­ed the joint com­mit­tee hear­ing in which I was signed up to tes­ti­fy. To keep it brief, the first hour was tak­en up with a pre­sen­ta­tion by Health and Wel­fare on the child sup­port enforce­ment sys­tem that was com­plete­ly irrel­e­vant because it was about the cur­rent sys­tem except for the men­tion of Ger­many as an exam­ple of an inter­na­tion­al case. It was unin­for­ma­tive dri­v­el but it did chew up an hour of time.

The wit­ness­es who signed up were in two camps – the peo­ple oppos­ing HB 1, were cit­i­zens for whom there was no per­son­al ben­e­fit to be had by the defeat of the bill. The peo­ple sup­port­ing HB1 were peo­ple who per­son­al­ly and/or orga­ni­za­tion­al­ly ben­e­fit from Health & Wel­fare mon­ey spent on social pro­gram.

The cry­ing and moan­ing from these spe­cial inter­est groups all of whom ben­e­fit from fed­er­al mon­ey would have been over­whelm­ing had it not been for the arrange­ment of pro and con order of the wit­ness­es. What was strik­ing­ly obvi­ous was that all of the tes­ti­mo­ny from the H&W sob sis­ters was a non sequitur to the actu­al bill being con­sid­ered. Their tes­ti­mo­ny was direct­ly relat­ed to the uncon­sti­tu­tion­al fed­er­al extor­tion demand to pass the bill. The only pur­pose it served was to chew up a lot of time which meant that oppos­ing wit­ness­es had only a brief 3 min­utes to tes­ti­fy on what is in fact, a com­plex bill with com­plex issues.

Here is what I didn’t get to say:

The attempt­ed extor­tion of the state to vio­late Arti­cle 1, Sec­tion 10 is being done through the prin­ci­ples of coop­er­a­tive fed­er­al­ism. In a paper writ­ten by Eric Fish, Leg­isla­tive Coun­sel for the Uni­form Law Com­mis­sion, he cit­ed a Supreme Court case – South Dako­ta v Dole, when he wrote that a fed­er­al man­date is con­sti­tu­tion­al only if it meets the fol­low­ing tests:

1. The exer­cise of the spend­ing pow­er must be in pur­suit of the gen­er­al wel­fare

Is the man­date to pass S.1067 in pur­suit of the gen­er­al wel­fare? No it isn’t. It serves a frac­tion of the pop­u­la­tion so small as to be sta­tis­ti­cal­ly insignif­i­cant – less than 1 per­cent of the child sup­port enforce­ment cas­es and those cas­es are an infin­i­tes­i­mal­ly small per­cent­age of the pop­u­la­tion at large.

2. Con­gress must exer­cise the spend­ing pow­er unam­bigu­ous­ly, allow­ing states to exer­cise their choice inde­pen­dent­ly but with full cog­nizance of the reper­cus­sions of the choice.

Are you being giv­en the choice inde­pen­dent­ly? No. You are being told to pass it and the feds are hold­ing chil­dren hostage.

3. The con­di­tions must be relat­ed to the fed­er­al inter­est in par­tic­u­lar nation­al projects and pro­grams

Is the inter­na­tion­al child sup­port enforce­ment sys­tem a nation­al project or pro­gram? No – obvi­ous­ly not. It’s inter­na­tion­al by def­i­n­i­tion.

4. The terms of con­di­tion­al spend­ing must not run afoul of oth­er con­sti­tu­tion­al pro­vi­sions

Does the fed­er­al man­date to inte­grate the Hague Con­ven­tion into Ida­ho law run afoul of oth­er con­sti­tu­tion­al pro­vi­sions? Yes it does. It runs afoul of Arti­cle 1, Sec­tion 10. These are his­toric times and there is no place for busi­ness as usu­al. You are on cen­ter stage and the world is watch­ing. What we need today are lead­ers – not weak-knee’d col­lab­o­ra­tors.

You’re not vot­ing on a child sup­port enforce­ment sys­tem. You are vot­ing on the struc­tur­al frame­work of our gov­ern­ment. The ques­tion is – will it be a legit­i­mate, con­sti­tu­tion­al gov­ern­ment or will you de-legit­imize your­selves and the gov­ern­ment of the State of Ida­ho.

It was clear that the fix was in on this bill. Even though the time giv­en to the oppo­nents of the bill was so brief, there was enough meat for the mem­bers of the leg­is­la­ture to post­pone action. The most glar­ing error they made was when the Assis­tant Attor­ney Gen­er­al, Scott Keim who obvi­ous­ly got his law degree out of a box from Crack­er­jack Uni­ver­si­ty, was asked about the man­date and his response was essen­tial­ly that the leg­is­la­ture had no recourse oth­er than to accept the man­date or lose fund­ing. That was wrong and mis­lead­ing advice and it went down­hill from there for him. Watch for the video of his tes­ti­mo­ny.

If some­one were to have designed a test to deter­mine the loy­al­ty and integri­ty of a pub­lic body like the leg­is­la­ture of Ida­ho, they could not have designed a bet­ter test than S.1067 and the spe­cial ses­sion of the leg­is­la­ture to pass the revised edi­tion, HB1. It proved the case. Ida­ho Pub­lic Offi­cials failed at every step. Thanks, Butch.

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